ISLAMABAD – After hearing the judges’ notification case the whole day, the Supreme Court on Friday observed that the Chief Executive’s order has lost its efficacy, therefore, it can’t be restored and if such attempt is made it will be tantamount to throttling the judiciary and subverting the Constitution.
A 17-member in its short order regarding the withdrawal of judges’ restoration notification said: “No functionaries of the government including the head of state, head of government and any other functionary can restore or take any step for withdrawing the March 16, 2009 notification.” The SC verdict cautioned if such move was made, then it would tantamount to violating the Article 6 of the Constitution.
Attorney General of Pakistan Maulvi Anwar-ul-Haq was asked to submit a written statement signed by higher authority, not other than by the Premier himself, about the government’s policy on withdrawing the notification of judges’ restoration. The AG sought more time to file the response, saying Prime Minister Yousuf Raza Gilani was busy in some official engagements and could not spare time to write down the policy. He, however, said that the message has been conveyed to the Principal Secretary of the PM.”
The government through the Prime Minister has been directed to conduct an inquiry that how the news of withdrawing the notification spread and who is responsible for it.
When no statement from the Prime Minister, terming the news wrong, could be placed before the court, the Chief Justice remarked; “The news is not wrong. You tell us otherwise we will tell you as we have the material.” He added: “We don’t want to expose anyone but are showing restraint.”
When the bench asked the AG whether he has met the Prime Minister, his response was ‘No’. Justice Sair Ali expressed displeasure and asked what sort of meeting the Premier was attending that he even can’t spare two minutes.
Justice Asif Khan Khosa told the AG, “Your reluctance put fuel to the fire as it is not without the reasons because there was threat to the Constitution. He said that the statement could not be made that the Constitution will be followed. Justice Jawwad said that the executive order for the restoration of judges is “scrape of paper.” Every organ of the state has to abide by the Constitution.
Justice Saqib Nisar said that after the judgement in case of Sindh High Court Bar Association the executive order of March 16, 2009 has lost the efficacy. Is someone telling the Prime Minister about the complication and the implication of Article 6 of the Constitution?
The Chief Justice of Pakistan, judges of Supreme Court and the chief justices and judges of High Courts were restored through the executive order but it was not endorsed by the Parliament. But on July 31 the Supreme Court in Sindh High Court Bar Association case had passed a judgment and declared illegal all the actions of General (Retd) Pervez Musharraf taken on November 3, 2007 and later.
Prime Minister Gilani himself had stated in the Parliament, “Judges were restored through executive order, which has not been sanctified by the Parliament.” The private TV channels aired the news and the denial was issued from the PM, saying that there was no truth in it and that the government has no intention to withdraw the notification.
The court observed that despite that the news was flashed on private TV channels that the government with the consultation of the most senior lawyer of the country and the law minister has decided to withdraw the notification.
It happened so many times when the high profile cases were heard by the court and also before and after the October 13 when the NRO case was heard by the SC the news of withdrawing the notification was discussed.
During the proceeding, the Attorney General was questioned that after judgment in SHCBA case what authority was left to the government to withdraw the notification, but he could not satisfactorily answer the queries.
Before the interval proceedings, Attorney General for Pakistan Maulvi Abwarul Haq submitted that the government does not have any intension to withdraw the notification of the restoration of the judges of the superior court and further said that mala fide is being presumed through the news report, aired on various TV channels.
Justice Saqib Nisar asked the AG to give his statement in order to finish the mala fide and the government will issue the statement then.
Justice Javed Iqbal said that the then Attorney General in MusharrafÂ’s era had also made such a statement that nothing will happen but the next date judges were sacked and confined them in their houses. He said that the court had given full chance to the government in NRO case and today too we are giving you a chance to contact the government.
“We are also patriotic like other citizens of the country and if someone has any complaint against any judge than Article 209 of the constitution could deal it,” Justice Javed said.
He further said that the apex court was taking steps as billions of rupees corruption is being made and if anyone violates the Constitution then Article 6 is there.
The AG replied that the apex court had shown grace on October 13 by giving time to the government. “We did not oblige anyone. We believe in the Constitution and we shall be run by rule of law and Constitution”, the Chief Justice remarked adding that action would be taken against those found guilty.
The Chief Justice further observed that literally the court is being abused but despite of that we are showing tolerance and we are here to strengthen and protect the institutions.
Meanwhile, the court directed Attorney General to produce before the court a written statement signed not other than by the premier himself about the governmentÂ’s policy regarding the notification of restoration of judges.
Qazi Anwar, President Supreme Court Bar Association, while appearing before the court submitted that in the first week of June the Prime Minister had made a statement saying that judges were restored by his own order and his order has not been validated by the Parliament.
Till yesterday morning, Qazi Anwar said that from Islamabad to Karachi there was a news circling of governmentÂ’s alleged standing against the judiciary.
Justice Arif Hussain Khilji remarked; “Are we sitting here under the Constitution or notification of Prime Minister?”
Qazi Anwar said that the government was bent upon testing nerves of the legal fraternity, however, he pledged that they would not allow anybody to hatch this kind of conspiracy.
“We were quite docile as Aitzaz Ahsan had filed an application on November I, 2007, fearing of happening something like this but we did not pay any heed to it and consequently we all were confined and thrown out of court”, Justice Khalil-ur Rehman Ramday observed. He said that having experience of the past, we can’t keep ourselves aloof any more.
Later, the hearing was adjourned till October 18 with the instruction that a clear-cut policy statement must be submitted on the next date of hearing.